Ruben Borrego v. State

NUMBER 13-05-309-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

RUBEN BORREGO

, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 156th District Court

of Bee County, Texas.

MEMORANDUM OPINION

Before Justices Hinojosa, Rodriguez and Garza

Memorandum Opinion by Justice Rodriguez

Appellant, Ruben Borrego, was charged with one count of aggravated sexual

assault and two counts of indecency with a child. See Tex. Pen. Code Ann. § 21.11

(Vernon 2003), § 22.021 (Vernon 2003 and Supp. 2005). A jury found appellant

guilty on all three counts and assessed punishment at ninety-nine years' confinement

for the first count and ten years' confinement for each count of indecency, to be

served concurrently. By one point of error, appellant challenges the trial court's denial

of his motion to suppress. We affirm .

I. Background

Appellant turned himself in to the Bee County Sheriff's Office on July 15, 2004,

after learning that a warrant had been issued for his arrest. Late that evening or the

following morning, Captain Daniel Caddell interviewed appellant in his office. Captain

Caddell read appellant his Miranda rights, and appellant initialed and signed a Miranda

waiver form. See Miranda v. Arizona , 384 U.S. 436, 468-69 (1966). During the

course of the interview, Captain Caddell asked appellant if he would prefer to give a

videotaped statement instead of a written statement. Appellant answered

affirmatively. Appellant was advised again of his Miranda rights during the video

recording, and he again signed and initialed a Miranda waiver form. Appellant made

several inculpatory statements which were recorded on video and on an audio compact

disc. Appellant filed a pretrial motion to suppress the video and audio recordings of

his statement, which the trial court denied.

II. Motion to Suppress

By one point of error, appellant contends that the trial court violated appellant's

right to due process by denying his motion to suppress the evidence recorded on the

videotape and audio compact disc.

A. Standard of Review

We apply a bifurcated standard of review to a trial court's denial of a motion to

suppress, giving great deference to the trial court's determination of historical facts

and reviewing de novo the trial court's application of the law. Maxwell v. State , 73

S.W.3d 278, 281 (Tex. Crim. App. 2002) (en banc). When a motion to suppress a

statement is based on a claim that the statement was involuntary, we give almost total

deference to the trial court's determination of historical facts, especially when the trial

court's fact findings are based on an evaluation of the credibility and demeanor of a

witness. State v. Ross , 32 S.W.3d 853, 856 (Tex. Crim. App. 2000) (en banc);

Guzman v. State , 955 S.W.2d 88 , 89 (Tex. Crim. App. 1977); Villarreal v. State , 61

S.W.3d 673, 678 (Tex. App.-Corpus Christi 2001, pet. ref'd). We review de novo

mixed questions of law and fact that do not turn on the credibility and demeanor of

a witness. Ross , 32 S.W.3d at 856 (citing Guzman , 955 S.W.2d at 89).

When the trial court does not make explicit findings of fact, we view the

evidence in the light most favorable to the trial court's ruling and assume the trial

court's implicit findings of fact support its ruling, so long as those facts are supported

by the record. Ross , 32 S.W.3d at 855 (citing Carmouche v. State , 10 S.W.3d 323,

328 (Tex. Crim. App. 2000)). If the trial court's decision is correct on any theory of

law applicable to the case, the decision will be sustained. Id. at 856 (citing Romero

v. State , 800 S.W.2d 539, 543 (Tex. Crim. App. 1990)); Villarreal , 61 S.W.3d at

678 .

B. The Law

The Fourteenth Amendment to the United States Constitution prohibits the

admission of any confession obtained in a manner considered involuntary as a matter

of due process. See U.S. Const. amend. XIV; Jackson v. Denno , 378 U.S. 368, 376

(1964); Tovar v. State , 709 S.W.2d 25, 27 (Tex. App.-Corpus Christi 1986, no pet.).

At a hearing to determine the admissibility of a confession, the burden of proof is on

the State to show by a preponderance of the evidence that the statement was given

voluntarily. Colorado v. Connelly , 479 U.S. 157, 169 (1986) (citing Lego v. Twomey ,

404 U.S. 477, 489 (1972)).

Under the federal standard for voluntariness, the confession is analyzed to

determine whether a statement given to police was given voluntarily, or likely given

as a result of coercive police activity. Schneckloth v. Bustamonte , 412 U.S. 218, 225

(1973); Martinez v. State , 127 S.W.3d 792, 795 (Tex. Crim. App. 2004); Alvarado

v. State , 912 S.W.2d 199, 211 (Tex. Crim. App. 1995) (providing that a statement

is involuntary "only if there was official, coercive conduct of such a nature that any

statement obtained thereby was unlikely to have been the product of an essentially

free and unconstrained choice by its maker").

Under Texas law, in order for a promise to render a confession invalid under the

Texas Code of Criminal Procedure, it must be (1) positive, (2) made or sanctioned by

someone in authority, and (3) of such an influential nature that it would cause a

defendant to speak untruthfully. Janecka v. State , 937 S.W.2d 456, 466 (Tex. Crim.

App. 1996); Muniz v. State , 851 S.W.2d 238, 254 (Tex. Crim. App. 1993) (en banc);

see Tex. Code Crim. Proc. Ann. art. 38.21 (Vernon 2005). To determine if the alleged

promise of a benefit was likely to influence a person to make false statements, an

appellate court considers whether the circumstances of the promise made the

defendant "inclined to admit a crime he didn't commit." Sossamon v. State , 816

S.W.2d 340, 345 (Tex. Crim. App. 1991) (en banc). Further, simple statements of

fact regarding how a confession can sometimes result in leniency do not render a

confession involuntary. See Muniz , 851 S.W.2d at 254 .

C. Analysis

Through his sole point of error, appellant contends the trial court violated his

due process rights by denying his motion to suppress the recorded statements because

the statements were involuntarily given. (1) Specifically, appellant contends that he was

induced into making the statements through promises made by Captain Caddell. We

disagree.

Appellant asserts that Captain Caddell stated to him that "the [c]ourt likes

honesty and if there's any leniency shown, it is to a person that's honest," and that

this alleged "promise" had the effect of offering appellant what he thought was the

easy way out: a confession that would spare his family the shame and embarrassment

of dealing with a possible trial. Essentially, appellant asserts that this amounts to a

form of subtle mental coercion. See Thomas v. State , 723 S.W.2d 696, 704 (Tex.

Crim. App. 1986) (providing that mental coercion includes "the more subtle force" of

offering the defendant two choices, one of which results in a punishment of which

"the defendant is entitled to be free").

We conclude, however, that a statement of fact, such as the one made by

Captain Caddell, is not a "promise" in the manner suggested by appellant, because it

was not of such an influential nature that it would cause a defendant to speak

untruthfully. Muniz , 851 S.W.2d at 254 ; see Tex. Code Crim. Proc. Ann. 38.21

(Vernon 2005). Additionally, Captain Caddell's statement did not amount to any form

of mental coercion because appellant has failed to demonstrate that "the party in

authority positively and unequivocally promised leniency in return for a confession." (2)

See Muniz, 851 S.W.2d at 254 (emphasis added). We conclude that the State met

its burden of proof at the suppression hearing, see Connelly , 479 U.S. at 169 , and the

trial court could have found that appellant voluntarily made the statements at issue.

Thus, the trial court properly denied appellant's motion to suppress. Appellant's sole

point of error is overruled.

III. Conclusion

Accordingly, we affirm the judgment of the trial court.

NELDA RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this 3rd day of August, 2006.

1. To the extent that appellant asserts, as a sub-issue, that (1) he did not voluntarily waive his

Miranda rights, Miranda v. Arizona , 384 U.S. 436, 468-69 (1966), or (2) he did not voluntarily make

the statements at issue because "he was not in the right frame of mind to voluntarily waive his

constitutional rights," we conclude the briefing is inadequate. See Tex. R. App. P. 38.1(h) (providing that

appellant's brief must contain a clear and concise argument for the contentions made, with appropriate

citations to authorities and to the record). Therefore, said sub-issues are not before us.

2. We also note that appellant relies on Sterling v. State , 800 S.W.2d 513, 518-19 (Tex. Crim.

App. 1990), for the proposition that a promise of leniency is an "important factor in deciding against

[the] voluntariness" of a defendant's statement. Sterling , however, is distinguishable from the present

case, in that the defendant in Sterling was specifically told before he confessed that his statement might

be used "for or against" him. Id. at 518-19 . The holding in Sterling turns on the "for or against"

language. See id. In the present case, appellant does not assert that Captain Caddell employed the "for

or against" language in relation to the statements at issue. Therefore, we conclude that Sterling does

not support appellant's proposition based on the facts of the case.